CLA-2 CO:R:C:G 086057 CRS
Mr. Earl A. Aversano
President
Innovative Medical Marketing Associates
226 Sunny Jim Drive
Medford, NJ 08055
RE: Carbon Monoxide Monitors; Reconsideration of NYRL 845201
Dear Mr. Aversano:
This is in reply to your letter dated October 27, 1989, to
our New York office, in which you requested reconsideration of
New York Ruling Letter (NYRL) 845201 dated September 15, 1989.
FACTS:
In NYRL 845201 we ruled that two carbon monoxide monitors,
imported from England and marketed as the EC50 Micro Smokerlyzer
and the EC50 Mini Smokerlyzer, were classifiable in subheading
9027.10.2000, HTSUSA, under the provision for electrical gas or
smoke analysis apparatus. You contend that the Smokerlyzers
should instead have been classified in subheading 9018.19.8050,
HTSUSA, under the provision for electro-diagnostic apparatus,
other, other, other.
In NYRL 845201, classification in heading 9018, HTSUSA, was
denied because it appeared that the Smokerlyzer would be used
principally by nonmedical people. In your request for
reconsideration, you submitted additional information, in the
form of articles from professional journals such as Preventive
Medicine and the British Medical Journal, in support of your
contention that the articles in question will indeed be used by
medical professionals.
The articles in question, the EC50 Micro and Mini
Smokerlyzers, are portable, battery operated instruments used to
measure carbon monoxide and carboxyhemoglobin levels from expired
breath. Both the Micro and Mini consist of a carbon monoxide
sensor, sampling system, plastic carrying case, calibration kit
and disposable mouthpieces.
The Smokerlyzers' sampling system traps a patient's expired
breath. This is read by the sensor and results in an electrical
signal directly proportional to the patient's carbon monoxide
level. The signal is displayed in parts per million on the face
of the instrument, thus enabling doctors, therapists and other
professional counselors to quantify their patients' smoking
habits, and thereby monitor their patients's compliance with
prescribed forms of treatment.
ISSUE:
Whether the Smokerlyzers are classifiable in heading 9027,
HTSUSA, or alternatively in heading 9018, HTSUSA.
LAW AND ANALYSIS:
Articles are classified under the HTSUSA in accordance with
the General Rules of Interpretation (GRIs). GRI 1 provides that
the classification of articles is to be determined according to
the terms of the headings and any relative section or chapter
notes and, provided the headings or notes do not otherwise
require, according to the remaining GRIs taken in order.
Heading 9027, HTSUSA, provides for, inter alia, instruments
and apparatus for physical or chemical analysis (for example,
polarimeters, refractometers, spectrometers, gas or smoke
analysis apparatus). The range of instruments covered by this
heading are discussed in greater detail in the Explanatory
Notes, which constitute the official interpretation of the
Harmonized System at the international level. The Explanatory
Note to heading 9027 states in relevant part:
(8) Gas or smoke analysis apparatus. These are used to
analyze combustible gases or combustion by-products (burnt
gases) in coke ovens, gas producers, blast furnaces, etc.,
in particular, for determining the amount of carbon dioxide,
carbon monoxide, oxygen, hydrogen, nitrogen or hydrocarbons.
Electrical gas or smoke analysis apparatus are mainly used
for determining and measuring the content of the following
gases: carbon dioxide, carbon monoxide and hydrogen, oxygen,
hydrogen, sulphur dioxide, ammonia.
The Smokerlyzers are not used to analyze burnt gases from coke
ovens, blast furnaces and the like and therefore are not
classifiable in heading 9027.
Heading 9018, HTSUSA, covers instruments and appliances used
in medical, surgical, dental or veterinary sciences, including
scintigraphic apparatus, other electro-medical apparatus and
sight-testing instruments. The Explanatory Note to 9018 states
in relevant part:
This heading covers a very wide range of instruments and
appliances which, in the vast majority of cases, are used
only in professional practice (e.g., by doctors, surgeons,
dentists, veterinary surgeons, midwives), either to make a
diagnosis, to prevent or treat an illness or to operate,
etc.
Thus the instruments classifiable in this heading are in most,
but not all, instances, used only in a professional medical
practice. Furthermore, Subnote (I), Instruments and Appliances
for Human Medicine or Surgery, provides that spirometers (which
assess lung capacity) are included among the special diagnostic
instruments and apparatus of the heading. Since Smokerlyzers
assess lung capacity by measuring carbon monoxide they are
covered by heading 9018, so long as they are used, in the vast
majority of cases, in professional practice.
The EC50 Series Smokerlyzers and similar carbon monoxide
monitors have been the subject of articles in a number of
professional journals. In an article entitled "Low Cost Carbon
Monoxide Monitors in Smoking Assessment," Jarvis, Belcher, Vesey
& Hutchison, 41 Thorax 886, 886 (1986), the authors state:
It has also been reported that feedback of carbon monoxide
concentrations may enhance the efficacy of a general
practioner's advice to stop smoking, suggesting a widespread
potential application in primary care and hospital
outpatient settings. (emphasis added).
Similarly, in an article entitled "Comparison of Tests Used
to Distinguish Smokers from Nonsmokers," Jarvis, Tunstall-Pedoe,
Feyerabend, Vesey & Saloojee, 77 Am. J. Public Health 1435, 1437-
38 (1987), the authors note:
Our findings have implications for clinical practice in
hospitals and other settings where patients may present with
smoking-related disease...At the same time, the success of
objective tests in identifying smokers means that the
clinician can escape from dependence on unreliable self-
report. (emphasis added).
Again, in "Controlled Trial of Three Different Antismoking
Interventions in General Practice," Jamrozik, Vessey, Fowler,
Wald, Parker & Van Vunakis, 288 British Medical Journal 1499,
1502 (1984), the authors write:
Advice against smoking given during routine consultations in
general practice is a cheap and simple method of reaching a
very large proportion of smokers, given that two thirds of
the population consults a general practitioner at least once
every year. The results of this study confirm that such
intervention has a useful effect. (emphasis added).
In order to be classified in heading 9018, an instrument
must, in the vast majority of cases, be used in professional
practice to prevent or treat an illness. It is Customs'
position, in light of the medical journals cited above, that the
EC50 Series Smokerlyzers will indeed be used in such a manner.
The articles surveyed suggest that the Smokerlyzers will expand
the physician's role in smoking cessation therapy. Not only are
people generally more aware of the hazards of smoking, but the
Smokerlyzer represents an advance on previous technology in that
it is a cheaper, more rapid, less invasive method of testing.
Finally, while other carbon monoxide tests are more
accurate, the Smokerlyzer is sufficiently accurate for use by
general practioners. Thus the Smokerlyzer offers a simple, cost
effective, and relatively accurate means for testing carbon
monoxide levels. Given the heightened awareness of the dangers
of smoking and increased attempts by individuals to break the
habit, it is Customs' view that the Smokerlyzer will find
widespread use in the medical community. Since it is likely to
be used, in the vast majority of cases, in professional practice
to make diagnoses, or to counsel against smoking and thereby
prevent smoking-related illnesses, it is the type of instrument
intended to be covered by heading 9018, HTSUSA.
HOLDING:
The articles in question, the EC50 Series Micro and Mini
Smokerlyzers, are classifiable in subheading 9018.19.8050,
HTSUSA, under the provision for electro-diagnostic apparatus...,
other, other, other apparatus, and is dutiable at the rate of 4.2
percent ad valorem.
Pursuant to section 177.9 of the Customs Regulations
(19 CFR 177.9), NYRL 845201 of September 15, 1989, is modified in
conformity with the foregoing.
Sincerely,
John Durant, Director
Commercial Rulings Division